Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7249
SECOND DIVISION Docket No. 7083
2-TRRAofStL-EW-'77
The Second Division consisted of the regular members and in
addition Referee C. Robert Roadley when award was rendered.
( System Federation No. 25, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
( Terminal Railroad Association of St. Louis
Dispute: Claim of Employes:
1. That the Terminal Railroad Association of St. Louis violated the
controlling agreement when they deprived Electrician Dale Greenway
of his contractual right to perform service on December 17, 1973;,
his second Rest Day.
2. That accordingly the Carrier should additionally compensate
Electrician Dale Greenway eight hours
(8')
at the double time
rate for December 17, 1973.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispu,Ie
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At issue is whether the Carrier violated the Agreement when he assigned
Electrician Engle to work the second of Claimant's rest days (December 17,
1973) instead of allowing Claimant to work the assignment. Both Claimant
and Engle were regularly assigned Electricians on the same seniority roster;
Engle's assignment being Monday thru Friday - 8:00 a.m. to 4:30 P.m. - rest
days Saturday and Sunday, Claimant's assignment being Tuesday thru Saturday -
12:00 midnight to 8:00 a.m. - rest days Sunday and Monday. Claimant's
position does not have a relief assignment. The record shows that Claimant
had already worked both of his rest days the preceding week, December 8
and 9, and his first rest day, December 16, of the week involved herein.
When it was determined by Carrier that it would be necessamy to fill.
Claimant's position on his rest days of December 16 and 17 Claimant was allowed
to choose one or the other of such days but not both, although he had advised
of his availability to work both days. Each employee above had worked all
Form 1 Award No. 7249
Page 2 Docket No. 7083
2-TRRAofStZ-EW-' 77
the days of their assignments during the week involved. Claimant elected
to work his first rest day and filed claim for not being allowed to work
the second rest day as well. Engle was assigned to the disputed work, he
being the junior man on the seniority roster. Carrier avers that the
assignment was filled in accordance with Rule 71, Rule
6
(b) and the agreed
upon interpretation thereof. These Rules are as follows:
"Rule
6
(b) Work on Unassigned Days - Where work is
required by the carrier to be performed on a day
which is not a part of any assignment, it may be
performed by an available unassigned employe who
will otherwise not have 40 hours of work that week;
in all other cases by the regular employe." (Per
Agreement of September 1, 1950)
"Rule 11 - Distribution of 'Overtime - When it becomes
necessary for employes to work overtime, they shall
not be laid off during regular working hours to
equalize the time.
Record will be kept of overtime worked and men called,
with the purpose of distributing it equally among those
interested in participating. In the event none of the
men want to participate, junior qualified men will be
assigned."
"INTRPRETATION: (of Rule 6(b) by Memorandum of
Agreement dated March 22, 1954) An unassigned day is
a day where no relief is provided or a holiday not
included as part of any assignment. Where unassigned
days are involved in any pool arrangement the work
will.. be divided among the men in the pool in accordance
with Rule 11."
Petitioner cited a letter from the Superintendent, dated February 25,
1954, in support of his position that Claimant should have been allowed to
work both of his rest days, which letter states in p,rtinent part:
"When necessary to use an employee at overtime rate to
perform the service required on unassigned days, the
incumbent of the position is entitled to work regardless
of whether work on the job is required on 5, 6, or 7
days. The incumbent of a position is-the only regular
employee that can be involved under Rule 6 (b) and he
only under circumstances outlined above."
Form 1
Page 3
Award No. 7249
Docket No. 7083
2-TRRAofStL-EW-'77
Carrier has pointed out that, in its judgement, the foregoing was
superseded by the Memorandum of March 22, 1954, quoted herein. There can
be no question as to which of these two documents is the more current and
therefore controlling insofar as they relate to an interpretation of Rule
6(b). Aside frarn the fact that the Petitioner elected to construe the above
February 25, 1954 letter as representing the applicable interpretation of
the Rule, the fact remains that Memorandum of Agreement, dated March 22,
1954,
is a bi-partisan agreement, not a unilateral letter, its effective
date is subsequent to the date of said letter, and therefore one cannot read
or apply Rule
6(b)
without reading the Interpretation as being an integral
part of the Rule. We therefore find that Rule
6(b)
and the agreed upon
interpretation thereof, dated March 22, 1954, is applicable and not the
alleged interpretation as asserted by Petitioner.
Consequently, it is clear that in applying the Rules to this case
one cannot isolate Rule 11 or Rule
6(.b)
as interpreted, they must be read in
conjunction with each other. In the: light of the foregoing we find nothing in
the record before us of sufficient probative value to show that Petitioner met
the burden of proof of a violation of the Agreement. Nothing in this record
shows that Petitioner challenged either the existence, validity of applicability
of Rule 6(b) and its agreed upon interpretation as submitted by the Carrier.
Under the circumstances, and in line with numerous Awards of the Board, we
must accept the contentions of the Carrier as being factual and a valid
defense to the claim. We shall therefore dismiss the claim. See Third Division
Awards 15503, 14385, 19849,20083, Second Division Award 6694, and many others.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
r
By
'~ r
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of March, 1977.